Guidelines

A Guide to the New York Print and Photograph Law

Originally appeared in Winter 1981/82 CAA newsletter.

In June 1981 New York enacted a law that extensively regulates the sale of prints and photographs in or from that state. The statute requires the written disclosure of certain information about prints and photographs sold or consigned for sale and the warranty that the information is correct. Severe penalties, including actions for treble damages and attorney fees, are provided for violations of the law.

Artists and photographers are treated as art merchants with respect to works created by them. They have the primary obligation for disclosing and guaranteeing the information which the statute requires for their works. It is therefore important for artists and photographers to acquaint themselves with the requirements of the law, which may be adopted by states other than New York. This is a summary of the provisions of the new law.

What Is Covered

The statute applies to sales and consignments for sale in, into, or from New York State of prints and photographs produced in more than one copy and offered for sale for more than $100, excluding frame. Books and magazines are excluded from coverage; pages or sheets from books and magazines are not.

Who Must Make Disclosure

The law applies to “art merchants.” Included are artists and photographers when they sell or consign their own work as well as dealers, publishers, wholesalers, and auctioneers. The required disclosure must be made in connection with sales by dealers, auctioneers, and artists to collectors. It must also be made in connection with sales and consignments between art merchants, i.e., artist to publisher, publisher to wholesaler, wholesaler to dealer, etc. Dealers consigning works to auction must also make the required disclosure.

Definitions

There are two key definitions in the statute which will be used in this summary. A multiple means a print or a photograph. A master is the plate, stone, block, screen, negative, etc., from which the multiple is made.

Effective Date

Although the effective date of the law is September 1, 1981, the law does not apply to sales or consignments made prior to March 1, 1982, in order to give art merchants adequate time to take steps necessary for compliance.

Information To Be Supplied

The information required by the statute varies depending upon the date on which the print or photograph was “produced,” i.e., published.

Prints or Photographs Published after September 1, 1981

The following information must be supplied in writing.

The name of the artist.
Whether the multiple is signed by the artist’s own hand and, if not, the source of the artist’s name, as an estate stamp, etc.
The medium or process, such as lithograph, engraving, etc. and, in the case of photographs, the material used in producing the multiple. (a) Disclosure must be made if the artist was deceased when the master was made.¹ (b) Disclosure must be made if the multiple is mechanical, photomechanical, or photographic copy of a work created in another medium where the work which is copied was not originally made for the purpose of making the multiple being sold,¹ and (c) if the multiple referred to in 3 (b) is not signed, disclosure must be made if the artist did not authorize or approve the multiple in writing.
Disclosure must be made if the multiple is a posthumous edition.¹ (a) Disclosure must be made if (i) the multiple was made from a master which produced a prior limited edition or (ii) if the multiple was made from a master which was made from a previously published multiple or the master from which the previously published multiple was made.
The year or approximate year in which the multiple was published.
(a) Whether the multiple is from a limited edition; if so, the size of the edition and whether and how the multiple is numbered. (b) Disclosure must be made if there are additional numbered multiples of the same image, exclusive of proofs (such as an edition on different paper), or if the proofs or unnumbered multiples of the same image, other than trial proofs, exceed the greater of 10 or 10% of the size of the edition. In such cases there must be a statement of how the additional multiples or proofs are signed and numbered.

Prints or Photographs Published prior to September 1, 1981

The statute requires less disclosure for prints and photographs published prior to its effective date, the nature and extent of disclosure depending upon the date of publication. Different disclosure requirements are established for prints and photographs published (i) between January 1, 1950 and August 31, 1981, (ii) between January 1, 1900 and December 31, 1949, and (iii) prior to January 1, 1900. The Disclosure Chart shows the disclosure to be made for prints and photographs published during each period.

Warranties

The information required to be disclosed is also unconditionally warranted. There are two exceptions to this rule:

In the case of multiples published prior to 1950 the warranty of authenticity—that the multiple is the work of the artist named—is governed by the present New York statute dealing with this warranty. As that statute is presently interpreted, an art merchant who sells a work as being that of a named artist is not liable for a breach of warranty where at the time of the sale there was a reasonable basis in fact for the attribution, notwithstanding subsequent contrary scholarship.
In the case of prints published prior to 1900 and photographs published after 1950, the art merchant satisfies the provisions of the statute if at the time of the sale a reasonable basis exists for the facts required to be furnished concerning the medium and related information set forth in paragraph 5A (3), above.

Disclaimers

A required item of information is not warranted if the art merchant specifically disclaims knowledge of that specific item. The disclaimer may be made, however, only after a reasonable inquiry, in accordance with the custom and usage of the trade, to ascertain this relevant information. Disclaimers must be clear and contained in the context of other language setting forth the required information.

Providing required information

The information is to be furnished in an invoice bill of sale, certificate of authenticity catalog, or any other writing which is furnished to the purchaser or consignee prior to the completion of the sale or consignment. Auctioneers may comply by including the information in the auction catalog, provided that their invoice refers to the catalog and lot number.
The information need not be supplied in catalog, flyers, or advertisements unless the catalog, flyer, or advertisement solicits a direct sale by inviting payment for a specific multiple. The required information must appear if a direct sale is solicited. Instead of the information, the catalog, flyer, or advertisement making the solicitation may contain the substance of the statement quoted in the footnote below, or the statement itself, and the art merchant must comply with the provisions of that statement.³

Signs

Each art merchant must post a sign in a conspicuous place in the place where the merchant regularly engages in the sale of multiples, including where applicable, artists studios and the apartments of private dealers, which says: “Article 12-H of the New York General Business Law provides for the disclosure in writing of certain information concerning prints and photographs. This information is available to you in accordance with that law.”

Sales and Consignments by Artists

Artists must make written disclosure of the information required by the statute when selling or consigning prints or photographs created by them to dealers or others, and are deemed to warrant the accuracy of the information.
A dealer is solely liable to a purchaser if the information supplied to the dealer by the artist is correct but the information supplied by the dealer to the purchaser is incorrect. If the information supplied to the dealer by an artist or any other consignor is incorrect, and the dealer relied in good faith on that information, the artist or other consignor is liable both to the dealer and to the purchaser from the dealer.
It is no defense that the artist, or any other art merchant, makes an honest mistake, unless the error is harmless.

Remedies and Enforcement

An art merchant who offers or sells a multiple in, into, or from New York and who either does not supply the required information, or who provides incorrect information is liable to the purchaser for the purchase price plus interest from the date of sale. The purchaser must first return the multiple in substantially the same condition in which received.
Where the purchaser can show that the art merchant willfully failed to provide the required information, willfully and falsely disclaimed knowledge, or knowingly provided false information, the purchaser may recover three times the purchase price.
A purchaser who successfully sues under this statute may, in the courts discretion, be entitled to reasonable attorney’s and expert’s fees. If the action is brought in bad faith, however, the purchaser may, in the courts discretion, be liable for the defendant’s expenses.
A person who repeatedly violates the law may be liable for civil penalties and injunctive relief in an action brought by the Attorney General. The Attorney General may also sue to seek restitution for any individual.

—Gilbert S. Edelson, Honorary Counsel, CAA

Notes

1. If nothing is said about items 3 (a), (b), (c), 4 and 4 (a) they are deemed inapplicable to the multiple being sold; disclosure is required only if the item is applicable.

2. As enacted, the statute contains a printer’s error which results in a variation from the sponsor’s intent. The disclosure requirements for multiples published prior to 1900 and those published between January 1, 1900 and December 31, 1949 have been inverted. We are informed that a corrected version of the statute will for be passed prior to March 1, 1982. This memorandum reflects the intended disclosure provisions.

3. “Article twelve H of the New York general business law provides for disclosure in writing of certain information concerning multiples of prints and photographs when sold for more than one hundred dollars ($100) each, exclusive of any frame, prior to effecting a sale of them. This law requires disclosure of such matters as the identity of the artist, the artist’s signature, the medium, whether the multiple is a reproduction, the time when the multiple was produced, use of the master which produced the multiple, and the number of multiples in a limited edition. If a prospective purchaser so requests, the information shall be transmitted to him prior to payment of the placing of an order for a multiple. If payment is made by a purchaser prior to delivery of such an art multiple, this information will be supplied at the time of or prior to delivery, in which case the purchaser is entitled to a refund if, for reasons related to matter contained in such information, he returns the multiple substantially in the condition in which received, within thirty days of receiving it. In addition, if after payment and deliver, it is ascertained that the information provided is incorrect, the purchaser may be entitled to certain remedies.”

Publication Date

DISCLOSURE CHART After 1950 to 1900 to Pre 8/31/81 8/31/81 12/31/49 1900

1. Name of Artist X X X X

2. Signature—By artist’s own X X X O
hand: source, if not

3. Medium X X X X
a) Was artist dead when master was made X X O O
b) Mechanical, etc. copy of work in another medium X X O O
c) If copy is not signed, did artist authorize in writing X O O O

4. Posthumous edition X X O O
a) Made from master which produced a prior edition or which was made from a previous multiple or master from which muitiple was made X O O O

5. Year or approximate year of publication X X Y Y

6. Limited Edition—if so, X X O O
a) Size and how numbered X X O O
b) Additional copies and additional proofs more than 10 or 10% of edition X O O O

X—Disclosure required
O—Disclosure not required
Y—Disclose either approximate year or period when multiple published or master produced.

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